Hooks v. Fitzenrieter

• Decision Date: 25 February 1890
• Citation: 13 S.W. 230
• Court: Texas Supreme Court
• Parties: HOOKS <I>v.</I> FITZENRIETER.

13 S.W. 230

HOOKS

v. FITZENRIETER.

Supreme Court of Texas.

February 25, 1890.

Commissioners' decision. Appeal from district court, Hardin county.

Action by Middleton Hooks against Charles Fitzenrieter for breach of contract. Judgment for defendant for want of jurisdiction. Plaintiff appeals.

P. A. Work, for appellant. Douglass & Lanier, for appellee.

HOBBY, J.

There was no error, we think, in sustaining the defendant's exceptions to the plaintiff's petition. It alleged with particularity the contract entered into between plaintiff and defendant; its breach by the latter, for which actual damages were claimed in the sum of $150. It does not appear whether the contract was in writing or verbal. The breach was further alleged to have been committed by the defendant "willfully, fraudulently, and with malice," for which exemplary damages were sought in the sum of $2,000. The claim for actual damages being for an amount less than $200, it was therefore not within the jurisdiction of the court, unless the averments were sufficient to entitle plaintiff to a recovery for exemplary damages, which were claimed in the sum of $2,000. Whether they were sufficient to authorize such a recovery is the question in the case. This question has been discussed in several cases. In the case of Rich v. Railroad Co., 87 N. Y. 390, it was elaborately treated. There is high authority for the doctrine that "the allowance of exemplary damages for the breach of a contract is a departure from the true principles of the law of damages, and of public policy." Field, Dam. 28, note; Railway Co. v. Shirley, 54 Tex. 125, 148. In our state, however, the right to sue for a breach of contract and for a tort, where both grow out of the same transaction, and can be properly litigated together, is recognized. Id. 148. It would be difficult to formulate an inflexible rule, which would apply to all cases of this character. The allegations upon which the exemplary damages are sought, should show that the manner in which the breach was committed by the defendant amounted to a tort, for which an action would lie for exemplary damages, independently of any right to recover actual damages by reason of the breach of the contract alone. The general averments in the petition before us, that it was done "with malice, willfully, and fraudulently," etc., are not sufficient for this purpose. The facts should be stated attending the breach, so that it could be ascertained from them whether they...